Author: Ilinca Mardarescu

In the judgement of Dobson v North Cumbria NHS Trust, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) failed to consider that women, because of their childcare responsibilities, are less likely to be able to accommodate flexible working, including working on the weekends, than men. The EAT referred to this as “childcare disparity” and accepted that the burden of childcare falls disproportionately on women, affecting their ability to adapt to certain working patterns.

After twenty years, the courts and tribunals have taken judicial notice of this disparity and the EAT concluded that the childcare disparity should have been accepted by the tribunal in Dobson v North Cumbria.

Mrs Dobson worked for the North Cumbria Integrated Care NHS Foundation Trust as a community trust. She was working two consistent days a week, but following a review, she was asked to work flexibly, including at weekends. Mrs Dobson was unable to commit to this arrangement because of her caring responsibilities for her three children, two of whom are disabled.

Mrs Dobson’s employment was terminated, and she subsequently bought indirect sex discrimination, unfair dismissal, and victimisation claims. The ET dismissed her claims but she subsequently appealed with the help of Working Families, who intervened and raised the issue of whether the ET should have taken judicial notice of childcare disparity between men and women.

Recently, the EAT found that the ET had erred in limiting the pool for comparison to the team in which the claimant worked and instead confirmed the appropriate pool was all community nurses across the Trust. The EAT also found the ET to have erred in finding no group advantage.  The ET should have taken judicial notice of the fact that women, because of their childcare responsibilities, are less likely to be able to accommodate flexible working patterns. The EAT’s conclusions meant that the ET’s decision needed to be reconsidered.

A similar decision was made by the EAT in Hughes v Progressive Support Limited where Mrs Hughes’s employment was not terminated, but her employer said that her contract would be changed to a zero-hours contract if she did not work the hours her employer requested. The EAT found there was indirect sex discrimination if an employer asks an employee to work certain hours, regardless of their childcare responsibilities, even if no penalty was imposed against the employee.

The recent case law makes it clear that certain working patterns and associated rules imposed by employers can disproportionately impact certain groups.  Employers will now need to be conscious of how the issue of childcare disparity can (disproportionately) affect certain groups of its employees.

For any assistance with this issue or any employment-related matter, please contact our Head of Employment Ilinca Mardarescu.

Gender critical theory, the idea that sex should not be conflated with gender identity, is now protected as a philosophical belief under s10 of the Equality Act. The implications this has for the workplace resides on whether beliefs that can be considered discriminatory against specific groups, can be legally protected as a “characteristic”.

Back in 2019, Maya Forstater claims she was unfairly discriminated against by her workplace, the thinktank Center for Global Development (CGD), over tweets she made in response to the proposed reforms to the Gender Recognition Act. Employees at the CGD complained that her tweets were “transphobic”, and her contract was not renewed.

The first Tribunal ruled that gender-critical beliefs do not satisfy the Grainger criterion, as these beliefs do not respect human dignity or the “enormous pain that can be caused by misgendering” and are therefore excluded from protection.

Despite this, it was allowed to be appealed to the EAT, believing that the first Tribunal had made an error in its application of Grainger. The criteria will generally protect all philosophical beliefs unless they cross a line into something akin to fascism. With this, the EAT judged that whilst Ms Forstater holds views that may be considered offensive to some, they would not be excluded from protection under the Equality Act. According to the Employment Appeal Tribunal’s final judgement, beliefs that honestly express personal beliefs without actively inciting hate or harassment must be “worthy of respect in a democratic society”.

However, it stressed that transgender people still have equal rights in the workplace, as the ruling has not “expressed any view on the merits of either side of the transgender debate”. Anything crossing the line into hate speech can be justifiably restricted under Article 9(2) or Article 10(2) of the European Convention on Human Rights.

The difference between holding a belief and expressing it raises several questions as to whether the specific philosophy is dangerous to specific groups. The EAT judgement maintained that intentionally misgendering someone with the intention to cause offence is still prohibited and it is not giving those with gender-critical beliefs impunity.

Therefore, whilst this may be seen as a lack of progress for those campaigning for better workplace protection for trans people, their rights are still equally upheld under the Equality Act.  For an employer, finding the right balance between two opposing rights such as these will be the real a challenge.

For any assistance with this issue or any employment-related matter, please contact our Head of Employment Ilinca Mardarescu

The Care Act 2014 recognises that supporting carers is of equal importance to supporting the people they care for. Therefore, since the implementation of this Act, carers rights have been put on a similar footing to the rights of disabled adults. 

A carer is someone who gives support and care to an adult who is their partner, child, friend or another close relative. Under the Act, the local authority must consider the well-being of the carer and consider whether there are steps it can take to prevent, reduce or delay any needs the carer has. 

Assessment of a carers needs

S 10 of the Care Act 2014 provides that where it appears to a local authority that a carer may have needs for support now or in the future, the local authority has a duty to carry out an assessment of those needs. Neither the carers or the disabled adult’s financial resources or the level of need of support will be taken into account in making the assessment. It is still possible to have an assessment if the person that is being cared for is not receiving local authority support, or if the person being cared for doesn’t live in the same local authority area as the carer. 

How does the assessment work? 

Your local authority must offer advice and support regarding carers right to an assessment to everyone in their local area. 

• Most local authorities will require the carer to complete an online self-assessment. However, if required this can be over the telephone, on paper, or face to face instead.
• The assessment will be looked at by a trained person from the local authority or another organisation so they can understand the carers needs and how they can be met.

The eligibility criteria

• The local authority will then apply eligibility criteria to the needs of the carers needs to see which ones are eligible for support. 
• The local authority will need to understand whether your mental or physical health are affected now, or are at risk of being affected in the future. 
• They will also look at whether you are unable to look after children, care for other people who want you to, look after your home, prepare food and look after your diet, have personal relationships, take part in education, work or volunteering, or find time for social activities. If these factors combined are impacting your wellbeing you may be eligible for support. 
• After applying the eligibility criteria has been applied, the local authority carries out a financial assessment which will help them to provide the necessary support for the carer. 

How can the local authority support a carer’s needs? 

If the assessment shows that the carer has eligible needs then the local authority will implement a support plan which identifies what the carer’s needs are and how they will be met. The support plan is an agreement between the carer and the local authority, and will generally be in the form of direct payments to the carer who can then arrange and pay for their own support. The support plan is usually reviewed 6-8 weeks after it is agreed, and then at-least once every 12 months. 

Young Carers 

Section 63 and 64 of the Care Act 2014 provides that where a young carer is likely to have needs for support after turning 18, the local authority must carry out a ‘young carer’s assessment’. Within this, the local authority considers whether the young person is willing to provide care beyond the age of 18, the amount that the young carer would like to work or participate in education and the impact that providing care may have on the carer. 

Once the young carer’s assessment has been carried out, the local authority must indicate whether the young carer is likely to meet the eligibility criteria once they are 18. They must also offer advice and information about meeting or reducing the young carer’s needs for support, or about preventing or delaying further needs which may develop.

Parent carers of children

The Children and Families Act 2014 gives parent carer’s the right to a stand-alone assessment and right to services. This assessment is called a ‘parent carer’s needs assessment’; the local authority must assess whether that parent has support needs. Once the local authority has done this and assessed what the needs are they must identify the support and services available to help the carer and their family. 

For more information on the rights of carer’s, get in touch with our supportive team to help. 

Sources: https://www.rethink.org/advice-and-information/carers-hub/carers-assessment-under-the-care-act-2014/

https://imprivateclient.passle.net/post/102gzyj/a-whistle-stop-tour-of-carers-rights

As part of the Government’s roadmap out of lockdown (and in part due to the success of the vaccination programme so far) as of 1st April 2021 anyone who is classified as clinically vulnerable will receive a letter confirming they are no longer being advised to shield.

All those that have previously received a shielding letter will now be contacted again to advise that they no longer need to shield.  Public Health England has issued new guidance to those categorised as extremely clinically vulnerable which includes advice on social distancing, hygiene, work and travel.  The advice will be to continue taking precautions generally but, crucially, will state;

“Everyone is currently advised to work from home where possible. If you cannot work from home, you should now go to work.”

Importantly, as of 1st April 2021, both Statutory Sick Pay (SSP) and Employment and Support Allowance (ESA) will no longer be available on the grounds of anyone shielding.

The extended Furlough scheme will be available where employees are eligible but this is purely at the discretion of the Employer.

For employees who are still worried and concerned about going in to work, this will no doubt increase anxiety.  Employers have a duty of care towards their employees and need to ensure their health and safety where possible.  No doubt this will be a contentious matter and is likely to lead to an increase in claims being made unless handled properly.

For advice on how to deal with the transition back to work for those that have been off for a while, contact our Head of Employment, Ilinca Mardarescu.

On Friday 19th March, the Supreme Court handed down its long-awaited decision in the case of Royal Mencap Society v Tomlinson-Blake.

The findings of this case are important for the care industry in particular, as the Supreme Court has held that employees who are expected to work ‘sleep in shifts’ do not earn the National Minimum Wage (NMW) for time spent asleep on the job.

The 32-page judgment highlights that a sleep-in worker who is “merely present” is treated as not working for the purposes of calculating pay under the NMW regulations. The argument that a worker must be available at such hours does not mean they will be expected to work during these hours. 

In the Court of Appeal, the Claimant had argued that as a Care Worker, she has to have a “listening ear.” Like in the Court of Appeal, the Supreme Court also rejected this argument as they concluded that having a “listening ear” does not amount to “working” for NMW purposes.

One of the many deciding factors, in this case, was the fact the judges gave weight to the Low Pay Commission’s recommendations that sleep-in workers should be paid an allowance rather than the NMW unless they are awake for work purposes.

This decision will no doubt come as a big relief to local authorities and employers in the care industry, particularly due to the effects of the COVID-19 pandemic on this sector. It spares the care sector of the risk of paying about £400 million in back pay if time spent sleeping was found to be working time.  

Up to now, the case of British Nursing v HMRC had indicated that sleep-in shifts could qualify for the national minimum wage. Although all of the judges in this case agreed the British Nursing v HMRC case was not a correct interpretation of the law (albeit they could not agree on the reasons). 

Undoubtedly, this judgment will be disappointing to unions and workers who were campaigning for better wages and conditions in an already low-paid sector.  We shall have to wait to see whether the Government will decide to intervene to change the sleep-in policy across the sector. 

The Supreme Court handed down its decision in Uber v Aslam last week which confirmed that Uber drivers should be classed as workers and not self-employed.  This decision means that thousands of Uber drivers will be entitled to basic rights which include access to minimum wage, rest breaks, and paid holidays.

The case initially commenced in 2016 and has traveled up through the courts being appealed (unsurprisingly) by Uber at every turn.  The Supreme Court however is the highest court in Britain meaning this decision is the final say on the matter. 

The flood gates are now open for all Uber drivers to seek compensation which could lead to Uber facing a large compensation bill.

One of the main arguments put forward by Uber is that its drivers are not workers because the drivers can choose the hours they work.

The ruling concluded that Uber must consider its drivers as workers from the moment they log on to the app and are available to work in the area until they log off the app. 

The Supreme Court decided that because of the factors listed below, the drivers were in a position of control and subordination to Uber.

• Uber sets fares which means they determine and control how much drivers earn
• Uber sets the terms of the driver’s conditions and so the drivers have no input
• Uber can penalize or terminate driver’s contracts if the drivers reject too many requests for rides and so the drivers are constrained by Uber
• Uber monitors drivers’ service through a star rating and they can end their employer-employee relationship after warnings and the service does not improve.

The decision could well have huge ramifications not just for Uber but other industries which rely on a form of imposed “self-employed” contracts.  The case will no doubt prompt a shift in the way these companies work in the future and the face of the gig economy may well be affected.   For now, those Uber drivers not a party to this litigation will have to either litigate themselves and/or at least threaten to litigate in order to recover what is owed to them.   Unions may well assist also but it is unlikely that Uber will automatically rectify matters and give drivers the money they are owed.

For assistance with this or any employment-related query, please contact our Head of Employment, Ilinca Mardarescu.